February 06, 2013

Blame Police for Mugshot Extortion, Not Google

In an impassioned opinion posting today, Jonathan Hochman argues that Google should take actions to effectively ostracize and censor the abominable "mugshot extortion" sites that have been popping up around the Web, who demand sometimes large fees to "remove" arrested persons' copied mugshot photos -- even for persons never charged or found guilty of any crimes.

His argument that these photos showing up in search results unfairly damage the reputations of many innocent individuals is valid.

However, his suggested agents for action -- search engines such as Google -- are not the appropriate focus in this very unfortunate situation.

We see again and again how tempting it is to try "blame the messenger" such as search results when indexed websites behave badly. But the reality is clear -- even if such search results are removed -- and the related slippery slope censorship problem can be enormous -- the actual sites in question still exist and their materials will find other ways to propagate around the Web.

The detailed calculus involved is not necessarily identical in the case of ad policy standards as compared with organic search results themselves, but the foundational issues are much the same -- and it's clear who should be held responsible, and that's not Google.

In fact, the real culprits are of course those mugshot sites themselves, in league with their enabling partners in these extortive activities -- law enforcement agencies throughout the United States.

And make no mistake about it -- law enforcement could stop most of this mess in a heartbeat if they really wanted to.

The underlying problem is the now common police practice of publishing -- and in most cases now that means placing online for easy archival and copying -- the mugshots and identifying data for persons merely arrested even for the most minor of offenses -- and often including people for whom charges are quickly dropped (and the persons released), or later found innocent as well.

In the past, when common practice was only to release such photos in cases of serious crimes, and when these images might only appear in a printed newspaper for a day or two, the situation was much less ripe for abuse.

But since going online, police departments are increasingly just dumping all manner of arrest photos and data onto the Net, with no regard for the potentially devastating impact on innocent persons' lives going forward.

We really should not be surprised by this turn of events. In many ways it's an outgrowth of another atrocious and unfair (and very common) police practice, the parading ("perp walk") of humiliated, shackled prisoners -- often not yet even tried for any crime much less found guilty -- in front of the media, both to try promote departmental efficiency and to poison any upcoming jury pools to be predisposed against the defendants.

The practice of mass dumping of mugshots and associated data onto the Internet is from the same mindset. "Look how many people we arrested last night! Look at these bad people we took off the streets! Gawd, we're great!"

Both of these abusive police practices are explicitly illegal in many countries.

As for the innocents in those mugshots -- the cops' actions show that they essentially could not care less.

There are a couple of ways to usefully attack this problem. To the extent that the mugshot extortion racket is technically legal, laws to change this state of affairs should be considered as soon as possible. But this could be tricky from a first amendment standpoint if law enforcement keeps throwing the images and data online publicly.

This suggests another approach.

Law enforcement's rapid release of arrest photos and associated data should be halted for all but the most serious of crimes at least. Such images and data related to accusations of minor crimes should not be released at all, or at a minimum after sufficient time has elapsed that only those arrests for which charges have actually been filed and not rapidly dropped are made available.

If you're arrested and you're released after charges are relatively quickly dropped or no formal charges are made, there's no valid reason for your arrest photo and data to be placed online to be abused in the first place.

But even if law enforcement later removed innocent parties' photos and data, what of the private mugshot extortion sites that mirror them?

While I am unenthusiastic in general about using copyright law for Internet takedowns, this may be a case where it can be of some actual help. If these innocent parties' arrest images and data were copyrighted by law enforcement, and law enforcement were willing to take actions against the private mugshot sites, this could provide a legal basis not only to try force removal of individual photos from those sites, but to undermine their evil business models entirely.

If law enforcement is unwilling to take such actions directly, they should be forced to assign the photo/data copyrights to the individual innocent persons arrested, so that these persons could then have some leverage for taking legal steps against these mugshot firms directly, perhaps on a class action basis.

Ultimately, this whole nightmare lands squarely at the feet of law enforcement, which leverages arrest photos of innocent people into political points, no matter who gets hurt in the process. If those photos and associated data were properly limited by the police and other officials in the first place, this entire mess would likely not exist at all.